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A view of the table, where the plaintiff and defendant will sit at and look towards the judge's chair (rear L), the witness stand (rear R), stenographer's desk (rear C) and jury box (R) in court room 422 of the New York Supreme Court at 60 Centre Street February 3, 2012.

Chip East/Reuters

Appeals court: gays can’t be excluded from juries

If you’ve enough watched legal dramas in film or on television, you’ve probably seen the process through which juries are chosen. If lawyers expect a certain prospective juror to be hostile to their arguments, they’ll try to strike him or her before they can reach the jury box.

There are, however, exceptions. The Supreme Court ruled in 1986, for example, that lawyers can’t exclude a possible juror simply on the basis of race. In 1994, the justices reached the same conclusion about gender.

But what about sexual orientation? According to the 9th Circuit Court of Appeals, excluding gays and lesbians from juries is impermissible, too.

“Gays and lesbians have been systematically excluded from the most important institutions of self-governance,” Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel. “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”

The decision arose from questioning of a juror at the 2011 trial of an antitrust dispute between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike to eliminate him from the jury pool. Judge Reinhardt said the strike was a case of intentional discrimination against a gay man in a case concerning AIDS medications of intense interest to gay people.

At a certain level, this seems like a no-brainer – if lawyers can’t exclude people on the basis of race and gender, then there’s certainly no reason to block otherwise-capable Americans from a jury simply on the basis of sexual orientation.

That said, the 9th Circuit’s unanimous ruling almost certainly won’t be the final word on the subject.

The 8th Circuit Court of Appeals ruled in 2005 that gays could be excluded from juries, though that was before the demise of the Defense of Marriage Act. As Adam Liptak’s report added:

Judge Reinhardt wrote that the Supreme Court’s decision in June in United States v. Windsor, which struck down part of the federal Defense of Marriage Act, required the application of “heightened scrutiny,” meaning more involved searching than a usual inquiry, when the government makes distinctions based on sexual orientation. This was so, Judge Reinhardt wrote, even though the majority opinion in the Windsor decision did not specify the level of scrutiny it had applied.

“We have analyzed the Supreme Court precedent,” Judge Reinhardt wrote, quoting from an earlier decision, “by considering what the court actually did, rather than by dissecting isolated pieces of text.”

When appeals courts disagree, the odds of the Supreme Court weighing in improve.